What’s New on MzAgams’ Blog?

Its been a crazy few months that started this year. The story is coming up. Stay tuned. But just a few tit bits about what I’ll be bringing your way for the rest of the year.

I’d like to thank all of you that have read and commented on the ‘How To Get A Divorce in Nigeria’ Series that I wrote in 2012. It’s been great fun reading and answering your questions. And its really satisfying to see blogs inspired by that series popping up all over the place in the past couple of years. I need to update and I’ll be doing so over the next few weeks bringing you the latest decisions in family law, child custody, and related family law matters. And maybe even a something from a guest blogger.

I’m also starting a new series on Customary Marriage including Islamic Marriage. It will tell you everything you need to know about women’s rights under various customary from around the country and Islamic law and how they are evolving. I have a couple of guest writers  eager to share what they know with you.  Antony C. Diala who is writing his PhD on living customary law will be contributing.   So will Barrister Amina Abubakar who is with the Human Rights Commission.

I’m expanding and trying something new – I’ll be bringing you vlogs and podcasts of your favourite topics. Keep sending in your questions and comments. I’m here to ensure you know what your rights are as a woman within your family – the family you were born into and the family you married into.  Knowledge is power. There are a lot of lies and half truths circulating in popular media about women’s rights within marriage that are deliberately created to exploit, oppress and even cheat women. Don’t be one of those women.

Shine your eye. Know your rights. Women’s rights are human rights.

And read my blog post about protecting your assets after marriage here.

That’s not all.

Working with the theme “Women Activists; Women’s Activism” this year I’m going to interview some of the women that work hard to advance and expand women’s rights in Nigeria and anywhere else we find them. My first interview is going to be with Josephine Effah Chukwuma of Project Alert on Violence Against Women. Got any questions you want to ask her?  We’re at the cutting edge of change in Nigeria. What does it take to build and sustain an organisation like hers in an environment like ours? Find out.

I’ll probably be interviewing a lot of Ashoka fellows. I worked with them over the years and I think they’re great. They’re the best that the social enterprise sector has to offer any where in the world. You don’t want to miss anything they have to say.

Do you have any suggestions about some woman or women that are doing great work in advancing women’s rights that I should talk to? Let me know. Drop a comment. Tell me what they do and where I can find them and I will. I’m always looking for shero’s to promote. So much of women’s work is hidden and unsung its no wonder people end up  thinking we aren’t doing anything much.

Elections are around the corner. More women are expressing an interest in contest for public office. Some people say we should vote for them just because they’re women and get more women in the political space. Some people say we should hold them to the same standards we hold male contestants. Its a hard choice believe me. I’ve been on both sides of the fence. Maybe we should just listen to the women contesting and hear what they say. I’ll score some interviews with female contestants and ask them some questions too.

Its going to be fun filled and informative. I promise.

 

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Are Prenups Valid in Nigeria and Other FAQs

A UK client  who was about to marry a Nigerian got in touch with me to draft a mirror prenuptial agreement and later in a mirror post nuptial in Nigeria. A mirror prenup is  recommended for people with multiple international domiciles, citizenship or businesses.

 

In the context of international prenuptial agreements, a mirror agreement is  drafted in one jurisdiction to follow the terms of an agreement that applies in another jurisdiction. It maximises the chances of enforcement of the agreed terms in multiple jurisdictions.

 

International prenuptial agreements are becoming increasingly popular as the world gets smaller and despite THIS rather regressive point of view about prenups in Nigeria more Nigerians are being asked to sign prenups by foreign and domestic partners. 

 

I especially recommend prenups for women who have a high net worth prior to marriage. While high net worth men that initiate divorce often evict their spouse from the matrimonial home without any assets whatsoever, and often even without her personal effects, high net worth women often lose joint property to their spouse when divorcing. At least this has been my experience as a divorce lawyer for over twenty years in Nigeria.

 

I’m not going speculate as to why this is so here.

 

Here are some FAQ’s about prenups in Nigeria;

 

Question: Do pre-nuptial agreements or a similar document exists in Nigeria

 

Answer: Yes, pre-nuptial agreements do exist in Nigeria and are treated primarily as valid contracts. 

 

Question: Are the valid contracts referred to “binding” or “just influential”?
 

 

A prenup is influential and not binding. Section 72(2) of the Matrimonial Causes Act recognises the right of parties to execute pre- and post-nuptial agreements. The relevant provisions are permissive and not interpretative and the courts retain unfettered exercise of their discretionary powers in divorce settlements.


Nevertheless, a prenup agreement would be upheld to the extent it is just and equitable. The courts determine marital property based on evidence of contribution by the applicant. The Married Women’s Property Act 1882 is still a statute of general application in Nigeria.    

In practice, however, the courts often direct divorcing parties to submit terms of settlement to avoid lengthy, contentious and difficult settlement and division property disputes. 

 

The Court of Appeal indirectly pronounced on the validity of prenup agreements, when it ruled that a trial court was right to hold that the respondent had a joint interest in a property belonging to the parties, because it was not referred to in their pre-nuptial agreement (Oghoyone v Oghoyone (2010) 3 NWLR (Pt. 1182) 564).

 

It is helpful to understand the intention of the client when drafting a prenuptial agreement – is it to protect property acquired before marriage? or is it to ensure adequate  maintenance/child support/settlement in the event of divorce separation? or protection for joint property/marital assets? 

Question:  Are there any criteria which must be followed when entering into a valid prenuptial contract in Nigeria? For example, in England a Pre-Nuptial Agreement, to be influential, must be:-

 a)     Fair;

 b)    Signed more than 28 days before the wedding;

c)     Both the wife and husband must have received independent legal advice (this is evidenced by the legal advisors signing the Pre-Nuptial Agreement);

 d)    Both parties must have disclosed to each other their financial circumstances; their assets, liabilities and income.

 
Answer: There is little or no case law or court rules guiding prenuptial agreements in Nigeria and the only statutory criteria is that it is fair and equitable. However, an agreement that attempts to oust or control the jurisdiction of the court will be considered contrary to public policy and probably ignored.

 

Otherwise, English law retains a strong influence on  judicial decisions in Nigeria and it would be good practice to conform to the criteria established in England.

 

The same answers would apply to questions about post nuptial agreements.

 

For more on joint ownership of property in the context of marriage in Nigeria read THIS.
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How To Register a Statutory Marriage in Nigeria

  • Marriage is registered at a local public registry or the marriage registry usually found at every local government secretariat
  • The intending couple files a Letter of Marriage Intention and pays of a fee of Naira 2,000.
  • A person under 18 years of age, who wishes to register a marriage, is required to present a letter of consent from his or her parents.
  • The registry will display the Letter of Marriage Intention for 21 days on a public notice board.
  • Provided that no objection to the intended marriage is made during the 21 day period, a couple may then register their marriage.
  • Birth certificates or official documents showing the ages of the couple are required together with the results of HIV and genotype tests.
  • A divorcee must produce a divorce certificate, while a widow or a widower is required to present the death certificate of the late spouse.
  • A marriage registrar may witness the exchange of oaths by the couple.

(H/T Australian High  Commission. Beautifully simple.)

 

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Solemnisation Of Statutory Marriages in Nigeria

The Nigerian Marriage Act, cap 218, Laws of the Federation 1990 lays down the requirements for the solemnization of marriage under the statute.

Before the celebration of the marriage,  parties shall sign and give to the Registrar of the district in which the marriage is intended to take place, a notice in the prescribed form known as Form A in which they will fill their personal details including Name, Age, Address, Occupation, Marital status, Consent (minor under 21 years), Signature etc. The Registrar shall then cause the notice to be entered in the Marriage Notice Book in his registry. A copy of this will be displayed in the registry for inspection by the public for 21 days.

Any person whose consent to a marriage is required or who may know of any just cause why the marriage should not take place, may enter a caveat against the issue of the Registrar’s certificate by writing at any time before the issue of the Registrar’s certificate the word ‘Forbidden’ opposite the entry of the notice in the marriage notice book and include his name, place of abode and the grounds upon which he claims to forbid the issue of the certificate. The Registrar shall not issue the certificate until such caveat has been pursued and disposed of.

Caveat’s to Notice of Intention to Marriage

 

Age
Written consent of either the parents or guardians is required for persons under the age of twenty one years unless one of the party is a widow or widower. The Act further provides in section 49 that whoever shall marry or assist any person to marry a minor under the age of twenty one years, not being a widow or widower, shall be liable to imprisonment for two years.

S.48 – Whoever, knowing that the written consent required by this Act has not been obtained, shall marry or assist or procure any other person to marry a minor under the age of twenty-one years, not being a widow or widower, shall be liable to imprisonment for two years.

Subsisting Marriage
Parties must be single at the time of marriage. If either if the parties is already married under the Act or under customary law to another person and the marriage has not been dissolved by any court of law their marriage will be invalid under section 33 (1) of the Marriage Act.

S.39 – Whoever, being unmarried, goes through the ceremony of marriage under this Act with a person whom he or she knows to be married to another person, shall be liable to imprisonment for five years.

S. 46 – Whoever contracts a marriage under the provisions of this Act, or any modification or re-enactment thereof, being at the time married in accordance with customary law to any person other than the person with whom such marriage is contracted, shall be liable to imprisonment for five years.

 

Kindred and AffinityA marriage between two persons who are within the prohibited degree of consanguinity or affinity is void. Under section 4 of the MCA, where persons are within the prohibited degrees of affinity and desire to marry, they may apply in writing to a Judge for permission to do so and if the Judge is satisfied that there are exceptional circumstances, the Judge may by an order permit the parties to marry one another.

The prohibited degrees of consanguinity and affinity under the Matrimnial Causes Act are as follows:
Marriage of a man is prohibited if the woman is, or has been his:
1. Ancestress 1. Wife’s mother
2. Descendant 2. Wife’s grandmother
3. Sister 3. Wife’s daughter
4. Father’s sister 4. Wife’s son’s daughter
5. Mother’s sister 5. Wife’s daughter’s daughter
6. Brother’s sister 6. Father’s wife
7. Sister’s daughter 7. Grandfather’s wife
8. Son’s wife
9. Son’s son’s wife
10. Daughter’s son’s wife

Marriage of a woman is prohibited if the man is, or has been her:
1. Ancestress 1. Husband’s father
2. Descendant 2. Husband’s grandfather
3. Father’s brother 3. Husband’s son’s son
4. Mother’s brother 4. Husband’s daughter’s son
5. Brother’s son 5. Mother’s husband
6. Sister’s son 6. Grandmother’s husband
7. Son’s daughter’s husband
8. Daughter’s daughter’s husband

After the period of 21 days, the Registrar shall issue a Form C certifying the criteria has been met and satisfied and that there is no cause why the parties should not be married and grant a license, known as Form D, authorizing the celebration of a marriage between the parties named in such license.

Upon receipt of the Registrar’s certificate, the parties can celebrate their marriage. The marriage can take place in a in a church duly licensed for the celebration of statutory marriages or the marriage registry usually within three months from the date the notice was placed with the registry. All States have marriage Registries at the State and Local Government secretariats.

During marriage proceedings in a registered church, the officiating minister fills in duplicate a marriage certificate printed for the purpose by the Registrar with particulars as required by Form E, and enter in counterfoil the number of the certificate, the date of the marriage, names of the parties, and the names of the witnesses.

The certificate is signed in duplicate by the officiating minister, by the parties, and by two or more witnesses to the marriage. The minister having also signed his name to the counterfoil will deliver one certificate to the parties, and within seven days thereafter file the same with the registry. The Registrar will register the marriage in a book called the Marriage Register Book and file the certificate in his office in accordance to the FORM F.

Not every church is a licensed place for the celebration of marriages in accordance with the Act. Under section 33 (2) of the Marriage Act, a marriage shall be null and void if both parties knowingly and wilfully acquiesce in the celebration of a marriage in a place other than the office of a registrar of marriages or a licensed place of worship.

Section 22 of the Marriage Act forbids a minister of religion to celebrate any marriage until the parties have delivered to him the Registrar’s certificate or a special license from the governor under section 13. Section 43 imposes a maximum penalty of five years imprisonment for performing a marriage in defiance of the Act.

There have been a lot of questions and a lot of confusion about the validity of a customary marriage entered into during the subsistence of a statutory marriage. The Marriage Act 1990 provides as follows –

S.35 Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of such marriage, of contracting a valid marriage under customary law, but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner apply to marriages so contracted.

It goes further to provide –

S.47 Whoever, having contracted marriage under this Act, or any modification or re-enactment thereof, or under any enactment repealed by this Act, during the continuance of such marriage contracts a marriage in accordance with customary law, shall be liable to imprisonment for five years.

 

A Review of Oluremi Obasanjo’s Bitter Sweet: My Life with Obasanjo (From The Archives)

December 10, 2008 at 10:25am

OLUREMI OBASANJO: PORTRAIT OF A FEMINIST POSTER GIRL?

By Lesley Gene Agams

A privileged idyllic childhood, a precocious adolescence and a striving dogged socially conscious woman. That is the sense I get of Oluremi Obasanjo from her recently released book Bitter Sweet: My Life with Obasanjo. Although she often comes across as naïve, gullible and coarse there is no masking the raw ambition and sense of achievement lurking covertly like a cunning animal.

Bitter Sweet offers a rare insight into a young girl’s life in pre independence Nigeria. Her story of going off to Lagos with only a female cousin was a surprise, as was her sneaking away from an event in Ibadan to visit her beau’s house. Even more astonishing was her un-chaperoned trip to London to meet Obasanjo before they were even married. It’s rare to hear such honest accounts about young women of that era enjoying such freedom. To hear it told by the social matrons, back in 1950 all girls were on chaperoned lock down till their bride price was paid and rings on their fingers.

Oluremi’s story also offers important insight for the Nigerian women’s movement and victim’s activists all over the world. It provides a rare viewpoint into the psyches of a high profile domestic violence victim and her equally high profile abuser. The question ‘why do victims stay?’ is one of the most contentious in academic and legal literature on violence against women globally. There is no agreement as to the dynamics but there is a growing recognition that victims cannot always exercise agency and walk away. This is a rare portrait of a narcissist, his codependent and their traumatized and troubled offspring.

Here we have the unfiltered voice of a victim and an abuser known all over the world. This isn’t the transcript of a case study interview where the interviewer asks leading questions or a counselor offers culturally biased speculation about the motives behind an anonymous patient’s experience. We have a cultural and social context that provides incredibly rich information. A number of commentators have compared it to a Nollywood script but this is not fiction. Why did Oluremi stay? Why does she still call this man her husband and ‘the only man I have known’?

Her story is significant because of who she was married to, her experience with Obasanjo is the experience of millions of Nigerian women. Thanks to her book we may be able to bring attention to their stories and begin a rational discourse on violence against women and domestic violence, two issues that have failed to enrage the Nigerian public or engage the Nigerian media. Oluremi is just one of the lucky ones. Apollonia Ukpabio endured 25 years of escalating violence till her skull was cracked open with a machete. Miraculously she survived. Her husband is on trial for the attack. Why did she stay? She believed God and church wanted her to protect and defend her marriage no matter what. Others have died.

The challenges of being married to Nigerian elites are especially made obvious in her narrative. It’s the story that does not get told, the male entitlement, the female consent and often the mutual infidelity. It’s really difficult to complain when living a really privileged life in a really poor environment. I know many a Nigerian matron that felt Princess Diana should have put up and shut up. The ‘old school’ belief is that a woman should marry for economic security not love, and if it’s companionship you crave find it with the women and/or your children. The wisdom of the matrons for a woman thinking of leaving her husband is territorial– don’t be foolish, why leave your turf for some other woman to take over? Fight for your matrimonial haven and sanctuary. Oluremi had a lot to fight for.

For me one of the more disquieting revelations of this book is how powerful and rich men are manipulated to accept and expect exploitation through their sexual extravagance. According to Oluremi, Obasanjo’s aunt became one of his ‘pimps’ and weak minded male that he was “he abandoned his Lugard quarters for five days because he didn’t want a divorcee, who was even a mother of two. Later, he gave in and the woman had a child…” I know people like that, they will never go to see a powerful man without ‘an offering’, usually a young pretty girl. The most disgusting personal encounter I recall was a middle aged couple that brought their 15 year old daughter dressed like a hooker to see a certain big man they wanted a favor from. I was there. I’ve often wondered about the ‘powerful’ men that fall for that one.

All families are dysfunctional and some may seem more dysfunctional than others but it seems too much of a coincidence that Obasanjo’s narcissistic, high risk behavior and mood swings only emerged after the civil war. Could he have been suffering from post traumatic stress disorder? This is not uncommon in soldiers, even Nigerian soldiers. I handled a divorce case a while back, the husband, an armed forces man, had just returned from an active mission and was exhibiting classic symptoms of PTSD. The administration couldn’t offer him any help. He refused to admit he had a problem, his wife did not know how to handle it, his marriage collapsed under the strain. He reacted pretty much the way Obasanjo did, contesting custody, refusing to pay child support and becoming increasingly abusive; contemporary Okonkwo figures, tormented, paranoid and insecure, things falling apart around them.

All that being said there is a lot that makes me uncomfortable about this book, it’s no master piece but its not meant to be. I found Oluremi’s total lack of self consciousness very disturbing, she seems to be saying of course I slapped that girl and of course I bit that woman and of course I made embarrassing scenes and even fought a truck full of soldiers, like it’s all normal. I found that eerie. The scene on page 66 where she attacks Mowo Sofowora, like a frenzied mother hen and then having fended off the interloper, clucks protectively around her chicks is totally dissonating and disturbing. All narrated like it’s totally normal, there is no moral debate as to the appropriateness of action. She is not the only female (or male) I know that considers her response to this sort of ‘provocation’ perfectly normal and unquestionably right. I find that frightening and sad.

Even more disturbing evidence of a venal, anachronistic world view was her calling Murtala’s ADC the day after she was informed of her child’s death and being morbidly counseled to see the incident as some sort of answer to her prayers to be back in Obasanjo’s house. Just access to this ‘big powerful man’ who happened to be the-father-of-her-children-who-he-had-custody of had become a goal. Her disappointment and resentment towards her sister in law who precipitated her hasty ouster five days later seemed to coldly over shadow her grief at losing a child. Her insecurity is overwhelming; she is willing to forgive Obasanjo the death of her child but not his sister. Her apparent devotion to him despite everything borders on an obsession. Is she a cold ruthless woman or the traumatized victim of a narcissist?

Then there was the bizarre description of their courtship, she presents herself as a passive and entitled recipient of Obasanjo’s courting. He wrote her letters, sent her books and gifts and eventually she said yes. Surely that’s not the whole story. What exactly did the shoeless son of a village drunk say to the spoilt railway master’s precocious daughter that convinced her that Obasanjo was worth waiting seven years for? It’s obvious he was a man on the fast track to power but Oluremi’s narrative while indicating that does not provide any insight into the motivation for any of his actions. Why did he want to study geology? Why did he change his mind for a military career? Is she absolving herself of all responsibility or did she really not know? Or is she just not telling? Loyal to the bitter end?

Whatever her motives for staying or for telling her story now Oluremi did not deserve the treatment she received from her husband. No man or woman deserves abuse and violence, and all women deserve the right to say to the man they married ‘I can’t live with you anymore’ and still be humanely treated with their children as Nigerian citizens protected by a constitution. We need to stop the abuse. We need to break the cycle of violence.

I have reaffirmed or learnt a number of things from reading this gripping account of lives interrupted;

1. There is an urgent need to review the Matrimonial Causes Act and extend its jurisdiction to women married under customary law; it is an archaic piece of legislation that offers little protection to women considering divorce or separation and their children. The customary law systems that the majorities of woman have access to in Nigeria are heavily biased against women and make seeking separation or divorce traumatic and humiliating.
2. We desperately need to introduce parenting skills to our education curricula. Children are often at greatest risk of long term harm and damage from their parent’s ignorance. Teaching children parenting skills is as important as teaching them to say no, zip up, life skills or whatever else we choose to call sex education. Teaching them religion is not enough.
3. The Nigerian armed forces need to increase their transition support for veterans returning from war, especially the psychological support they provide. Wars are dehumanizing and brutalizing, veterans and their family members need assistance re-integrating after prolonged exposure to the violence and brutality of armed conflict and barracks life.
4. Nigerian media need to learn how to write more sensitively about women and women’s issues. Most of media commentators including female commentators brushed aside her story and condemned her for telling it. Stark testimony to how such tragedies can play out to an inevitably sad outcome while hidden in plain view.

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Child Custody in Nigeria FAQ: Who Owns The Child? II

‘Ownership’ of children is a feature of many customary laws in Nigeria.

Customary laws vary from one tribal group to the other. In some Igbo-Nigerian communities payment of the bride price determines ‘ownership’ of children. In ‘An Anatomy of Female Power’ Chinweizu has previously argued that the payment of bride price in Nigeria does not entitle the payer to the woman but rather to the fruit of her womb and I agree with him.

Among some Igbo-Nigerian groups and in Umuaka where I come from and grew up in particular under tribal laws where a marriage is not formalised and a bride price is not paid any child a woman bears ‘belongs’ to her father’s house and enjoys full inheritance rights. Likewise, if a woman left or divorced her husband she had to repay him the bride price her paid or any children she had thereafter ‘belonged’ to him, no matter who was the biological father. However, these tribal laws have been held to be repugnant to natural justice, equity and good conscience and are not usually enforceable by the customary courts anymore. Likewise, tribal laws that deny mothers access or custody without a consideration of natural justice, equity and good conscience are repugnant. However, it takes a good knowledgable lawyer to make that argument before the court.

In Yoruba-Nigeria the practice was that a child could claim a right to inheritance so long as the father had acknowledged him during while the father was alive. Sharia law, which is classed as a customary law in the Federal republic of Nigeria, apparently privileges mothers in custody issues whether they were married or not.  Customary courts just like statutory courts have a lot of discretion and it all depends on the arguments they are presented to them.

Lagos State is the only state in Nigeria that has created a family court procedure to deal with disputes relating to guardianship, custody and adoption that is not related to matrimonial causes in its Child Rights Law 2007. So if you are in Lagos and are unmarried and have a custody matter that is the law to refer to.

Nevertheless there is still a lot of confusion regarding children that are born to parents that were never married under statutory or customary law. There is also an increase of children born to parents that are not married under statutory and customary law. There seems to be a presumption that once a father is named on a birth certificate as such it secures his ‘rights’ to the child. I figure the courts will be busy untangling those complications for a few decades to come.

I’ve heard from a lot of people that the Social Welfare Office’s, which are increasingly called upon to decide questions of custody and maintenance in cases where the parents were never married have been ruling that once a child is 7 years old the father can take custody. This is wrong and dangerous and needs to stop. The law remains clear that the best interest of the child is paramount in deciding custody and neither parent  is entitled to automatic custodial rights. Both must show that they can meet the best interest of the child and not only that the other parent cannot.

In a decided case the father when asked what arrangements he had made for the children whose custody he was seeking said they would stay with his ageing mother in the village as opposed to staying with heir mother on the university campus where she lived and worked. The judge despite his conservative leanings ruled the children live with their mother even though he could not bring himself to grant her custody.

Perhaps the confusion lies in the meaning given to the word ‘custody.’ Custody is not ownership. We’ll consider ‘custody’ in my next post. I’m already over my 500 word limit. Or guideline.

Chao

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Child Custody in Nigeria FAQ: Who Owns The Child?

First of all we really need to stop thinking in terms of ‘ownership’ of children. Children are not chattel. You do not own a child. They are little people. Dependent little people and adults are parents, guardians, care takers and providers. Not owners.

That said what people usually mean when they ask that question is who gets ‘custody’ when the parents of a child are separated, divorced or even never married. Or who the child lives with because the parent a child lives with will influence the child’s future behaviour and personality.

Both parents have an equal right to raise, influence and make decisions for their juvenile offspring. (Nwosu vs. Nwosu [2012] 8 NWLR) Where the parents are cohabiting there is no usually issue and in many households the father assumes the role of head of household and makes decisions for everyone else with or without consulting his wife, the mother. It all depends on their personal dynamics.

Custody issues arise where either party wants to leave or end the relationship between the parents of a child or children. In Nigeria most men seem to think that they ‘own’ the children and presume that they will get custody especially of male children. Then again most men seem to think they own their wife too.

Both the Matrimonial Causes Act and the Child’s Right Act are clear that issues of custody are to  be decided in the best interest of the child and the courts have held that neither parent has an automatic right to custody.

If you are in a statutory marriage (that is one registered at the Marriage Registry and issued a Federal Government Certificate) and want a divorce, judicial separation or nullification of that marriage and believe that the best interest of the children is served with you or a woman in a violent abusive marriage that stays because you won’t leave without your children here is what your lawyer needs to do;

  1. After drafting and filing our petition for judicial separation, divorce or nullification and being assigned a court BEFORE serving your spouse your lawyer should file an exparte motion (known as an interlocutory relief) for temporary custody pending the determination of the petition AND a motion on notice for temporary custody simultaneously.
  2. The court will hear the ex parte motion and make a ruling which will be served on your spouse (The Respondent) with the notice of petition and the motion on notice for the same interlocutory relief asked for in the ex parte motion. The court will set a date before the exparte ruling expires in 7 days to hear the motion on notice thus giving the respondent a chance to challenge your request to the court for custody pending the determination of the main petition.
  3. After hearing the motion on notice and the respondents answer the court will either uphold its previous ruling or make a new one. This ruling is only binding till the matrimonial matter before the court is decided and then the issue of custody will be considered again and a final ruling be made at the end of the trial.
  4. Either party to a matrimonial petition can apply for an interlocutory order for custody.

The court will seek to determine what is in the best interest of the child and will consider the child’s age, gender, special needs, living environment, child care arrangements, plans to further the education of the child, financial ability of parent proposing arrangements, and the parents temperament and lifestyle. However, financial privilege alone is not enough determinant of a child’s best interest. (Nwosu vs. Nwosu)

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